SafeWork NSW v Australian Softwood Pty Ltd

[2022] NSWDC 242

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Australian Softwood Pty Ltd [2022] NSWDC 242

Hearing dates:

31 May 2022

Date of orders:

30 June 2022

Decision date:

30 June 2022

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   The defendant is convicted.

(2)   The appropriate fine for the offence is $350,000.00 and that will be reduced by 25% to reflect a plea of guilty.

(3)   Accordingly, I order the defendant to pay a fine of $262,500.00.

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs agreed in the sum of $37,956.35.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – no previous convictions - appropriate sentence – strong subjective case

OTHER – s 19(1) of the Work Health and Safety Act 2011 (NSW)

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Procedure Act 1986 (NSW)

Fines Act 1996 (NSW)

Work Health and Safety Act2011 (NSW)

Work Health and Safety Regulation 2017 (NSW)

Cases Cited:

Bulga Underground Operations v Nash (2016) 93 NSWLR 338

Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610

Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384

Kirk v Industrial Court (NSW) (2010) 239 CLR 531

Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464

Markarian v The Queen (2005) 228 CLR 357

Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117

Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Orbit Drilling v The Queen (2012) 35 VR 399

R v Cage [2006] NSWCCA 304

R v MA [2004] NSWCCA 92

R v Miria [2009] NSWCCA 68

R v MMK [2006] NSWCCA 272

R v Thomson & Houlton (2000) 49 NSWLR 383

R v Youkhana [2004] NSWCCA 412

SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398

SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632

SafeWork NSW v Poletti Corporation [2019] NSWDC 491

Veen v R (No. 2) (1988) 164 CLR 465

WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700

WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151

Texts Cited:

Australian Standards AS 2359.2 – 2013 Powered Industrial Trucks Part 2: Operations

SafeWork Australia “Falling Objects Fact Sheet”, dated February 2012

SafeWork Australia “General Guide for Workplaces Traffic Management”, dated July 2014

SafeWork NSW “Truck Management Guide for Truck Drivers”, dated November 2016

WorkCover NSW Guide “Safety in the road freight transport industry”, dated November 2013

Category:

Sentence

Parties:

SafeWork NSW (Prosecutor)
Australian Softwood Pty Ltd (Defendant)

Representation:

Counsel:
Mr I Fraser (for the Prosecutor)
Mr Y Shariff SC (for the Defendant)

Solicitors:
Ms M Kington, Department of Customer Service (for the Prosecutor)
Ms J Sidi, Jones Day (for the Defendant)

File Number(s):

2021/167316

Judgment

1. On 22 July 2019 at 146 Ceramic Avenue, Raglan, New South Wales, (‘the site’), Australian Softwood Pty Ltd (ACN 629926692) (‘the defendant’), being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (‘the Act’) to ensure so far as was reasonably practicable the health and safety of workers while workers were at work in the business or undertaking, failed to comply with that duty and the failure to comply with that duty exposed workers, and in particular Thomas Williamson (‘Mr Williamson’), to a risk of death or serious injury contrary to s 32 of the Act.

BACKGROUND

2. The defendant conducted a business or undertaking that included operating the Allied Timber Products (‘ATP’) sawmill, located at the site. The defendant is managed by AAM Investment Group of Companies (‘AAMIG’).

3. The defendant company came into life in November 2018 and only acquired the site and commenced operations on the site on 8 January 2019, and had never operated a sawmill previously.

4. At all material times, Ms Annalise Small (‘Ms Small’) was employed by Complete Staff Solutions Pty Ltd (‘Complete’) and engaged by the defendant as a forklift driver at the site on a casual basis. At the time of the incident, Ms Small had been working at the site for six weeks and had held her forklift licence for approximately five and a half years with relevant work experience unloading timber from trucks.

5. Mr Williamson had been employed by Rogieras Transport Pty Ltd (‘Rogieras’) as a truck driver since 7 December 2015 and began working at the site shortly thereafter. At the time of the incident, Mr Williamson had picked up loads from the site approximately 2-3 times per week.

6. On 22 July 2019, the date of the incident, Ms Small attended the site at approximately 6:45am and met Mr Williamson in the despatch area at approximately 7:00am. Ms Small weighed numerous packs of timber. Each package consisted of 160 pieces of 38mm x 28mm pine timber roof batons 2.6m in length and bound by three steel straps, and contained 10 batons high and 16 batons wide, where the size of each pack measured approximately 418mm high, 608mm wide, and 3.6m long. Each pack weighed approximately 580kg.

7. Ms Small and Mr Williamson discussed how they were going to load the vehicle. They decided to load the driver’s side of the truck first, and Ms Small told Mr Williamson to stand at the front of the truck on the driver’s side while she was loading. Before loading the packs, Ms Small gave Mr Williamson a thumbs-up to signal that she was going to load the packs and that he should stay where he was.

8. Ms Small loaded four packs on the driver’s side and then three packs on the passenger side of the truck while Mr Williamson stood at the front of the truck on the passenger side. She then loaded two packs in the truck to complete nine packs of timber. Mr Williamson gave a thumbs-up and applied the belly strapping to the nine packs.

9. After Mr Williamson finished putting on the belly straps, he gave Ms Small the thumbs-up, and she picked up four packs of timber. She saw Mr Williamson standing on the passenger side of the truck near the door and used the forklift to load and push the packs of timber into the truck so that they were loaded flush.

10. At approximately 7:25am, Ms Small says that she heard two bangs and could no longer see Mr Williamson at the passenger side door. She saw Mr Williamson laying on the ground next to the driver’s side of the truck. He was unresponsive. A single pack of timber was observed on the ground near the driver’s side of the truck. The incident was notified to SafeWork, who attended the site at approximately 11:00am.

11. Mr Williamson was intubated and ventilated at the site, and airlifted to Westmead Hospital at approximately 9:25am, arriving at approximately 10:08am.

12. He suffered a severe traumatic brain injury which included frontal cerebral contusions, extradural and subarachnoid haemorrhage, right temporal bone fracture and right retroperitoneal haemorrhage.

13. He suffered a pelvic fracture, described in the hospital records as an “open book pelvic fracture” which included a commuted sacral fracture, right superior pubic ramus fracture, avulsion fracture of the left pubic bone and a widening of the pubic symphysis.

14. It was determined that irreversible cessation of all function of his brain had occurred. A certification of brain death was issued at 12.30pm on 24 July 2019.

RELEVANT GUIDANCE MATERIALS

15. An extensive amount of additional guidance material was available to the defendant at the time of the incident. This material is set out in detail in the Agreed Statement of Facts (‘ASOF’) at paragraphs [38]–[47].

16. The Work Health and Safety Regulation 2017 (NSW) (‘the Regulation’) has relevant provisions regarding the management and minimisation of the risk of falling objects.

17. Clause 54 of the Regulation provides:

“54 Management of risk of falling objects

A person conducting a business or undertaking at a workplace must manage, in accordance with Part 3.1, risks to health and safety associated with an object falling on a person if the falling object is reasonably likely to injure the person.”

18. Clause 55 of the Regulation provides:

“55 Minimising risk associated with falling objects

1) This clause applies if it is not reasonably practicable to eliminate the risk referred to in clause 54.

2) The person conducting the business or undertaking at a workplace must minimise the risk of an object falling on a person by providing adequate protection against the risk in accordance with this clause.

Maximum penalty –

a) in the case of an individual – 70 penalty units, or

b) in the case of a body corporate – 345 penalty units.

3) The person provides adequate protection against the risk if the person provides and maintains a safe system of work, including –

a) Preventing an object from falling freely, so far as is reasonably practicable, or

b) If it is not reasonably practicable to prevent an object from falling freely – providing, so far as is reasonably practicable, a system to arrest the fall of a falling object.

Examples –

1 Providing a secure barrier.

2 Providing a safe means of raising and lowering objects.

3 providing an exclusion zone persons are prohibited from entering.”

19. Australian Standards AS 2359.2 – 2013 Powered Industrial Trucks Part 2: Operations (‘the Standard’) was in place and available to the defendant at the time of the incident. It specifies requirements for using industrial trucks, offers guidance on designing workplaces in which they are used, and provides information about Traffic Management Plans to separate trucks and mobile plant from people in the work area as far as practicable. It also provides that exclusion and separation zones should be achieved in the order of effectiveness, and where this is not practicable, the plan should identify risk control measures, including physical barriers and warning devices.

20. The WorkCover NSW Guide “Safety in the road freight transport industry”, dated November 2013, was in place and available to the defendant at the time of the incident. Under “Traffic Management – loading/unloading freight”, it provides the following:

• “Workers are at risk of being hit by trucks, forklifts and other mobile plant during loading/unloading – and by falling loads if they’re in the exclusion zone”;

• “When loading/unloading mobile plant, consider the following traffic management measures:

• Exclusion zone and safety zone – specify a pedestrian exclusion zone around the truck and a safety zone for the driver;

• Erect sturdy barriers such as fences or gates around the safety zone, or if these are unavailable use chains or tape;

• No-one should enter the exclusion zone without the mobile plant operator’s approval;

• The mobile plant operator should not begin loading or unloading until everyone is clear of the exclusion zone;

• Maintaining an exclusion zone around the truck while loading and unloading will also eliminate the risk of anyone being hit by falling loads.”

21. The SafeWork Australia “General Guide for Workplaces Traffic Management”, dated July 2014, was in place and available to the defendant at the time of the incident. It provided that:

• “The best way to protect pedestrians is to make sure people and vehicles cannot interact. Where powered mobile plant is used at a workplace, you must ensure that it does not collide with pedestrians or other powered mobile plant;

• If people and vehicles cannot be separated you should consider the following:

• Barriers or guardrails at building entrances and exits to spot pedestrians walking in front of vehicles;

• High impact traffic control barriers;

• Temporary physical barriers; and

• Separate clearly marked footpaths on walkways.

• If you have created zones to separate vehicles from people – the person operating the powered mobile plant such as forklifts should control the exclusion zone.”

22. The SafeWork NSW “Truck Management Guide for Truck Drivers”, dated November 2016, was in force and available to the defendant at the time of the incident. It is a guide for truck drivers to identify traffic management issues at sites and it lists “designated pedestrian walkways”, “separation between pedestrians and mobile plant”, “designated parking areas for customer vehicles to be loaded and unloaded”, and “designated safety area for drivers to stand while vehicles are being loaded or unloaded”, as items that drivers should confirm before making a delivery or collection.

23. The SafeWork Australia “Falling Objects Fact Sheet”, dated February 2012, was in force and available to the defendant at the time of the incident. It provides that if there is a risk of an object falling into an area, isolation or no-go zones should be established.

SYSTEMS OF WORK PRIOR TO THE INCIDENT

24. Various training and induction systems were in place at the time of the incident. This included the two-week site induction and training of Ms Small, where she completed a documented site orientation and new worker induction/training checklist in June 2019 and was informed by an experienced forklift operator that “if you can’t see me, I can’t see you” and to “stop what you’re doing”.

25. Mr Williamson also completed an induction program with Rogieras in December 2015 and November 2016, a “Chain of Responsibility Awareness Training Driver Assessment” in July 2019 and was inducted into Rogieras’ loading and unloading procedure that directed drivers to stand clear of forklifts and load stacks, and to remain in clear view of the forklift driver during the loading of trucks.

26. The defendant required truck drivers to undergo site induction and training before loading or unloading trucks, documented in the safe operating procedure (‘SOP’) entitled “Site Induction for Transport dated 17 February 2016”.

27. At the time of the incident, the defendant had the following work health and safety systems in place at the site, including:

• Work Health and Safety Manual, dated 2013/2018, which relevantly included:

2.1.2 – “Safety Regulations and information for site visitors”:

Personal protective equipment – all visitors must comply with PPE notices on site. Minimum requirements are … hardhats in loading and unloading area

2.1.3 – “Site Entry Rules and Safety Regulations for Short Term Contractors”:

Personal protective equipment – all short term contractors must comply with PPE notices on site. Minimum requirements are … hardhats in loading and unloading areas.

• Site Induction for Transport Contractors, dated 17 February 2016, which relevantly stated:

“hard hat protection – must be worn by log truck drivers when in log yard.

Hard hats are required during loading and unloading of their vehicle”

Position of the driver during loading – all drivers within the loading area must remain in sight of forklift driver at all times, otherwise loading will cease.”

• SOP – Injury or Incident dated 2 October 2009.

28. The defendant undertook an audit of its Safety Management System (‘SMS’) in March 2019, some few months after acquiring the business. It’s findings relevantly included the following:

1. “The majority of ATP Policies and Safe Operating Procedures (‘SOPs’) are in place for most operations but have not been updated since 2013. There is a significant amount of work to bring the SMS up to industry standards.”

2. The audit recommended that the SMS be reviewed in detail to check the compliance to legislation and industry standards, check the currency of the documents due to the date of issue, and check that they are aligned to the aspirations and expectations of the AAMIG company. This was an area determined to be non-compliant by auditors.

3. Traffic Management: “The site has a number of different areas which require movement of plant (forklifts, loaders) and vehicles (trucks) in and around the different areas. Due to the stockpiling of product, there are numerous “blind spots” created that could result in an incident (e.g. people and plant impact, plant and plant impact, etc.). Traditional practices (e.g. horns, radios, beepers) are being used to reduce the potential for an incident. It was noted by the auditor that changes to the movement of trucks will be implemented to reduce the risk. The auditor is of the opinion that the risk of an incident remains and that every effort should be made to strengthen the separation of mobile plant and people.”

4. The audit recommended a “full assessment of the site Traffic Management modelling and the development of a comprehensive traffic management plan to be undertaken”. The audit assessed it was an area with “opportunity for improvement”.

29. As at July 2019, the defendant was in the process of reviewing and implementing some of the audit’s recommendations and engaged Mr Ken Hocking (‘Mr Hocking’), to review and update SOPs for the site. Mr Hocking was from the Timber Trade Industrial Association. Mr Hocking provided the defendant three draft SOPs for the loading and unloading of trucks at the site, and the defendant was in the process of reviewing and finalising these but had not yet developed a comprehensive traffic management system or a safe system of work for loading and/or strapping trucks as at the date of the incident.

30. The system of work in place for the task of loading trucks in the despatch area included communication between the forklift operator and truck driver to ensure that the truck driver was always in a safe place within the forklift operator’s sight while the truck was being loaded, the use of hand signals, the forklift operator to cease using the forklift if they could not see the truck driver, wearing personal protective equipment, and belly-strapping loads between loads or after loads instead of concurrently to loading. This system of work did not include any physical separation between the forklift operator and truck driver, a designated exclusion or driver safety zone, a designated pedestrian walkway, or a traffic management plan.

STEPS TAKEN AFTER THE INCIDENT

31. SafeWork NSW issued two improvement notices in response to the incident. As a consequence, the defendant made numerous changes to their business, listed in detail at paragraph [49] of the ASOF. These include confining truck drivers to the cabin of their truck after the incident, building a “hut” for drivers to sit in while their truck was being loaded, conducting an investigation into the incident and preparing a report in July and August 2019, holding “Stop and Prop sessions” at the site, engaging an external WHS resource to review the use of onsite resources and to develop and amend a number of SOPs, inducting transport contractors into the site with training on updated loading and unloading procedure, and training all other employees and contractors in new policies relevant to their respective roles.

SENTENCING

32. The penalty to be imposed must be one which will give overall effect to the policy of the Act, in particular, ensuring the safety, health and welfare of workers and others on workplace premises. I have had regard to the principle contained within the Act that workers should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work: s 3 of the Act.

33. The Court is to be guided by the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’) which include:

1. Section 3A which sets out the purpose of sentencing;

2. Section 21A which sets out the aggravating, mitigating and other factors in sentencing; and

3. Section 22 which provides that a guilty plea is to be taken into account on sentence, as is the time when the plea was effectively indicated or entered.

34. The Court is to approach a sentencing exercise on the basis of it being one of ‘instinctive synthesis’: Markarian v The Queen (2005) 228 CLR 357.

34. The approach to sentencing has been identified by Russell SC DCJ in SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 at [109] in this way:

“The court must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Muldrock v The Queen [2011] HCA 39; [2011] 244 CLR 120. This approach to sentencing, known as the “instinctive synthesis” approach, involves the making of a global judgement without any attempt to state precisely how any given factor has influenced the judgement.”

OBJECTIVE SERIOUSNESS OF THE OFFENCE

36. The duty of the defendant requires that it ensure the health and safety of workers as far as reasonably practicable. This duty is not delegable, and the defendant had control and influence over the workers at the site. The duty requires the identification of risks in the workplace and an assessment of measures to address such risks.

37. The primary factor to be assessed is the objective seriousness of the offence. Subjective factors play a subsidiary role: Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464, 474–5.

38. The gravity of the offence is determined by the extent of the duty holder’s failure to ensure, so far as was reasonably practicable, that its workers were not exposed to risks to their safety: Orbit Drilling v The Queen (2012) 35 VR 399 at [62] (Maxwell P, Bongiorno JA and Kyrou AJA); Veen v R (No. 2) (1988) 164 CLR 465.

39. The objective degree of foreseeability is a matter for the Court to have regard to when considering the gravity of the offence: Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 (‘Capral Aluminium’) at [81].

40. An offence will be serious where there is an obvious or foreseeable risk to safety against which appropriate measures were not taken even though such measures were available and feasible: Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117.

41. Subjective factors should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence: WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at [31].

42. The Court of Criminal Appeal examined the sentencing process with regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 (‘Nash v Silver City’). Justice Basten at [34], under the heading ‘Assessment of Risk’ said:

“The sentencing judge commenced his consideration with the proposition that ‘[g]reater culpability attaches to the failure to guard against an event the occurrence of which is probable rather than an event the occurrence of which is extremely unlikely.’ However, the truth of that proposition depends upon other considerations, including (a) the potential consequences of the risk, which may be mild or catastrophic, (b) the availability of steps to lessen, minimise or remove the risk and (c) whether such steps are complex and burdensome or only mildly inconvenient. Relative culpability depends upon an assessment of all those factors.”

43. His Honour further observed at [42]:

“The culpability of the respondent is not necessarily to be determined by the remoteness of the risk occurring, nor by a step-by-step assessment of the various elements. Culpability will turn upon an overall evaluation of various factors, which may pull in different directions. Culpability in this case is reasonably high because, even if the pressure event of the force which occurred might not be expected to occur often, the seriousness of the foreseeable resultant harm is extreme and the steps to be taken to avoid it, which were not even assessed, were straightforward and involved only minor inconvenience and a little, if any, cost. That assessment will involve both objective considerations and a consideration of what the respondent’s responsible officers knew or ought to have known.”

44. I accept that s 3A of the Sentencing Act is generally regarded as a codification of the common law principles of sentencing: R v MA [2004] NSWCCA 92. The purposes of punishment in the section are constrained by the sentencing principles that exist under the common law, such as the principles of proportionality and totality: R v MMK [2006] NSWCCA 272.

45. The Court is obliged to make an assessment of where on the scale of criminality the offence lies referable to the maximum penalty prescribed by the legislature: R v Cage [2006] NSWCCA 304 at [17]–[18] (Latham J).

46. The defendant’s duty required it to identify risks at the site and to adopt measures to eliminate or minimise them: s 17 of the Act: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [34] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

47. The following matters are relevant to determining the culpability of the defendant:

1. The defendant acquired the business of ATP on 8 January 2019 and had never operated the business prior to January 2019. Further, the prosecutor accepts that the culpability of the defendant does not commence until 8 January 2019.

2. Upon taking over the operation of the business, the defendant inherited the existing systems of work (including policies and procedures) that had been put in place by the previous owner and operator of the sawmill.

3. Within a short time of the acquisition, commencing on 27 March 2019, the defendant carried out an extensive audit of the safety systems at the site. It was recognised that improvements would need to be made including in relation to traffic management arrangements at the site.

4. At the time of the incident the defendant was implementing changes to the safety systems, including the traffic management systems, and had engaged an industry specialist in April 2019 to review and update approximately 30 standard operating procedures (‘SOPs’) for the site. Relevantly on 17 June 2019 the external expert had provided the defendant with the revised draft SOPs, including three draft SOPs concerning the loading and unloading of trucks at the site. These were being reviewed at the time of the incident, but unfortunately these new improvements had not been implemented when the incident occurred.

5. It is apparent that the systems in place at the time of the incident required the truck driver to remain 3 metres away from an operational forklift, within view of the forklift driver, near the cabin and on the same side of the truck as the forklift during the loading and wearing personal protective equipment. The forklift driver was required to cease operation of the forklift if the truck driver could not be seen. It is further apparent that, on the day of the incident, the defendant did not secure compliance with these measures.

6. Despite there being in existence a policy for loading and unloading of logs, which required that drivers stay in the cab of the truck during unloading, effectively creating an exclusion zone, there was no specific written policy for the loading of trucks with timber products.

7. The risk was of workers, particularly truck drivers like Mr Williamson, being struck with falling timber batons during the process of loading and/or strapping timber batons on a truck. The system of work with regard to the batons relied heavily upon a forklift driver keeping track of whether the driver of the truck was in view, whilst simultaneously undertaking the task of loading the truck. Neither the system of work nor the written policies in place required the driver to stay in a specified location during the loading. The manner of this system gives rise to a significant opportunity for miscommunication and misunderstanding, which I believe is likely what occurred on this occasion.

8. Furthermore, the relevant extract from the Manual (PTB Tab 9) sets out the relevant safety regulations for site visitors, which Mr Williamson was. It requires, inter alia, that visitors must wear PPE and hard hats in the loading and unloading areas. It also provides that someone from ATP is to be with the visitor for the entirety of their visit. In this instance the defendant failed to ensure that Mr Williamson wore PPE and allowed Ms Small, the forklift driver, to be the person present with the visitor. Despite the process requiring the forklift driver to cease operations if they could not see the truck driver, the defendant failed to ensure compliance with these aspects of the system.

9. There were significant steps not taken by the defendant that would have reduced or eliminated the risk. The risk and the steps to reduce or eliminate it were highlighted by the relevant legislative provisions in the WHS Regulation and in the guidance material available to the defendant prior to the incident.

10. Whilst the defendant had identified the need for its health and safety policies to be updated, and had commenced the process, it permitted work to continue prior to that process being completed.

11. The failures of the defendant are set out in full at paragraph [12] of the Amended Summons, and can be summarised as follows:

1. Failing to develop and implement a safe system of work for unloading and/or strapping vehicles, including:

• Implementing an exclusion zone around the truck, controlled by the forklift operator, to which only the forklift operator is permitted to access during the loading process.

• Implementing a driver safety zone in which the driver is to remain during the loading process.

• Clearly designated pedestrian walkways protected by physical barriers to access the driver safety zone.

• Implementing a truck safety zone, where a truck driver can safely strap their load, and into which forklifts are not to enter while strapping is taking place.

• Requiring that truck drivers are to seek permission from the forklift driver to exit the driver safety zone.

• Enforcing the requirement that during the loading and strapping process that personal protective equipment be worn, including hard hats.

2. Failing to develop a traffic management plan.

3. Failing to provide adequate information, instruction and training to workers regarding the safe system of work and the traffic management plan.

12. It is conceded by the prosecutor that the defendant has taken significant steps since the incident to improve health and safety at the sawmill. These measures are set out at paragraph [49] of the ASOF, and in the Affidavit of Benjamin George Edser of 17 May 2022 (Exhibit 1) and Victoria Anne Scriven of 17 May 2022 (Exhibit 2).

13. I accept that the defendant has not simply taken a “desktop approach” to enhancing its safety systems by merely updating its policies and procedures, but has conducted audits, improved policies and procedures, made physical modifications to the systems of work, engaged experts, conducted further audits, and ensured induction and training on the new systems.

14. The defendant concedes that the risk was foreseeable, and the potential risk of injury was serious.

15. Mr Williamson tragically lost his life as a consequence of the incident.

48. Employers must take steps to protect workers against risks created by inadvertent conduct of workers in the course of their work, if it is reasonably practicable to do so: SafeWork NSW v Poletti Corporation [2019] NSWDC 491 at [88].

49. However, I accept that it is the risk that I am assessing the seriousness of, and not the manifestation of it. At [53] in Nash v Silver City, Basten JA dealt with the proper approach to considering the objective seriousness of offences under the Act, saying:

“It is important to note that the risk to be assessed is not the risk of the consequence, to the extent that a worker is in fact injured, but is the risk arising from failure to take reasonably practicable steps to avoid the injury occurring. To discount the seriousness of the risk by reference to the unlikelihood of the injury occurring is apt to lead to error. The conduct in question is the failure to respond to a risk of injury, conduct which will be more serious, the more serious the potential injuries, whether or not they are likely to materialise. The objective seriousness of the conduct will also be affected by the ease with which mitigation steps could have been taken.”

50. Where there was an obvious or foreseeable risk to safety against which appropriate measures were not taken, in circumstances where such measures were available and feasible, it will be a serious offence: WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151 at [37] (Kearns DCJ).

51. The objective seriousness of an offence under s 32 of the Act is considered in the context of the gradation of offences contained in ss 31–32 of the Act: Nash v Silver City at [54]–[56]. The matters relevant to objective seriousness for a s 32 offence include:

1. The potential consequences of the risk. Consequences may range from mild to catastrophic. Offending will be more serious where the potential injuries are severe, regardless of whether they are likely to materialize: Ibid [34];

2. The availability of steps to eliminate or minimise the risk: Ibid [53];

3. Whether those steps are complex, burdensome or mildly inconvenient. If mitigating steps could easily have been taken, the offending will be more serious: Ibid [34] and [53];

4. Whether the risk was known or ought reasonably have been known to or identified by the offender;

5. Whether the risk was an obvious or clear one; and

6. The vulnerability of the workers exposed to the risk: SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 at [55] (Russell SC DCJ).

DETERRENCE

52. In fixing a penalty in relation to these offences, an important objective feature is the need for specific and general deterrence. This is enshrined in s 3A(b) of the Sentencing Act.

53. General deterrence is a significant factor when safety obligations are breached. The fundamental duty of the Court is to ensure a level of penalty for a breach will compel attention to work health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388 (Hungerford J).

54. When examining matters of deterrence, both specific and general deterrence apply: R v Miria [2009] NSWCCA 68.

55. The Court of Criminal Appeal in Bulga Underground Operations v Nash (2016) 93 NSWLR 338 at [177]–[180] reaffirmed the principle that both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process, unless there are exceptional circumstances which would allow a Court to depart from this rule, citing with approval the decision of the Full Bench of the Industrial Court of NSW in Capral Aluminium at [74]–[75] which said:

“[74] … It follows that both aspects of deterrence [specific and general] are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40]-[43]), we would expect such cases to be very rare and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

…

[75] … Even where an offender demonstrates good character or a commitment to rehabilitation, the court may be obliged to have regard to the need for general deterrence: see R v Thompson (1975) 11 SASR 217 at 222. This is particularly so where the offence in question is prevalent in society and represents a serious threat to the community. The need for general deterrence in relation to serious offences under the Act is undeniable.”

56. General deterrence must be a significant feature of the sentence imposed upon the defendant. It can be appropriately used to direct the industry’s attention to the consequences of inattention and the need for greater concentration on the potential risks of death or serious injury associated with working in an industry that necessitates the need to load and unload timber products, and in particular packages of timber batons weighing approximately 580 kilograms each.

57. The requirement to comply with the expectation of the community, that both large and small employers will comply with safety requirements, means that employers must take the obligations imposed by the Act very seriously. However, whilst general deterrence is a matter that I must consider in the sentencing process, it is not a factor to dominate the exercise of sentencing discretion to the exclusion of all other factors.

58. In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve the safety of its worksites following a breach of a duty are relevant, as is the propensity for the defendant to reoffend.

59. I accept that this incident was as a consequence of an inadequate system which did not properly address the risks with regard to the loading of timber products. I also accept that the defendant is dedicated to continuous improvement in its safety systems and does so in a proactive and not reactive manner, as is demonstrated by the evidence that it was in fact improving its safety systems at the time of the incident and had commenced this process within two months of acquiring the business.

60. The steps taken by the defendant after the incident reflect its commitment to safety. It initiated a number of measures, both immediate and long term, to eliminate the risks associated with the loading and/or strapping of the trucks at the site. This gives me some comfort that the defendant is unlikely to re-offend.

61. I accept that the prospects of rehabilitation of the defendant are good, but the need for an element of specific deterrence is still necessary in these circumstances.

VICTIM IMPACT STATEMENTS

62. Mrs Jodie Williamson, the daughter-in-law of Mr Williamson, provided a Victim Impact Statement which became Exhibit B. Mrs Jodie Williamson attended the sentencing hearing via AVL. The contents of the statement are tragic and demonstrate the significant terrible consequences that have flown from Mr Williamson’s death, and the trauma that has been suffered by his son Joe and his family.

63. Mrs Debra Williamson, Mr Williamson’s wife, provided a Victim Impact Statement dated 19 May 2022 which became Exhibit C. Mrs Debra Williamson attended Court in person and very bravely read that statement to the Court. It would be impossible for anyone not to be deeply moved by her statement. Mrs Williamson’s life has “been destroyed” by the loss of her best friend, lover and soul mate. The relationship amongst family members has been very strained and added to the grief suffered by the extended family of Mr Williamson. It has also had a deleterious financial impact on his wife.

64. I extend my deepest sympathies to all of Mr Williamson’s family and friends. It is evident that he was a man dearly loved, and so cruelly ripped away from all those that loved him. I feel privileged to have heard from family members as to their unending grief and thank them for their bravery in putting those matters before me. The extent of their loss and ongoing suffering are matters I have considered in coming to my determination.

AGGRAVATING FACTORS

65. The injury, harm and loss caused by this offence was substantial: s 21A(2)(g) of the Sentencing Act. For an aggravating factor to be established, I must be satisfied beyond a reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26] (Hidden J, McColl JA and Levine J agreeing).

66. It is not necessary that an injury occurred for the offence to be established, the creation of a risk is sufficient. In this circumstance, Mr Williamson tragically lost his life.

MITIGATING FACTORS

67. The defendant co-operated with the SafeWork investigation: s 21A(3)(m) of the Sentencing Act.

68. The defendant has no previous convictions: s 21A(3)(e) of the Sentencing Act.

67. I accept that on the basis of what is contained in the Affidavit of Mr Edser (Exhibit 1), which is unchallenged, that the defendant is of good corporate character as evidenced by the assistance given to community groups and being a local business employing local workers.

68. For reasons stated earlier in this judgment, I accept that the defendant has good prospects of rehabilitation: s 21A(3)(h) of the Sentencing Act.

69. The defendant entered a plea of guilty on 13 December 2021, and the prosecutor submits it is open to me to find that the defendant is entitled to the maximum discount on that basis, thus I will allow the deduction of 25% for the utilitarian value of the pleas in accordance with the principles set out in R v Thomson & Houlton (2000) 49 NSWLR 383: s 21A(3)(k) of the Sentencing Act.

70. The appropriate fine for the defendant is $350,000.00. The defendant is entitled to a discount of 25% for the early plea.

PENALTY

73. I make the following orders:

1. The defendant is convicted.

2. The appropriate fine for the offence is $350,000.00, and that will be reduced by 25% to reflect a plea of guilty.

3. Accordingly, I order the defendant to pay a fine of $262,500.00.

4. Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

5. Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, agreed in the sum of $37,956.35.

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Decision last updated: 30 June 2022